Plugging the hole

For the second time in four months, a woman charged with fracturing the skull of a 21-month-old infant while in this country illegally is sitting in a Mexican jail, awaiting extradition to face murder charges in Dallas.

But plugging the legal loophole that allowed her to escape justice in the first place is proving to be another matter.

In January, the Dallas Observer broke the story of how Maricela Martinez, a 25-year-old native of Guanajuato, Mexico, had taken advantage of the loophole in order to escape charges of killing 21-month-old Briana Cisneros.

Thanks to what authorities describe as a series of "glitches in the system," every year dozens of illegal immigrants charged with crimes ranging from drug running to murder are quietly shipped back home without being called to account for their crimes.

The "glitches" have a handful of crime-and-punishment bureaucracies working to plug the hole--not to mention cover their backsides. Earlier this month, at an extraordinary three-day hearing on whether the bondsman who sprang Martinez should have to make good on her $100,000 bail, all interested parties got to tell their sides under oath.

What emerged was a tragi-comic story of a botched sting and bureaucratic miscues that allowed Martinez, and perhaps others, to slip through the grip of at least three law enforcement agencies. It turns out that the sheriff's department, the district attorney's office, and the INS all knew that Martinez was in danger of being shipped out of the country, and then bungled efforts to keep her here.

The Martinez case illustrates how the system has worked to benefit a surprising number of illegal aliens who would rather return home than face criminal charges.

On October 14, 1996, an ambulance carrying little Briana Cisneros arrived at the Parkland Hospital emergency room. Briana arrived with a skull fracture, retinal hemorrhaging, and massive brain swelling. As the doctor in charge noted, death was "inevitable."

Martinez, an undocumented alien who claimed that the girl had fallen from a highchair while in her care, accompanied the little girl to the hospital. Because emergency room personnel felt that Martinez's story was inconsistent with Briana's injuries, they contacted the Dallas police. That afternoon, Martinez was booked into the Dallas County jail on charges of "serious bodily injury to a child." (Defense attorneys say the charge is common in cases where child-abuse results in death, since it carries the same penalty as murder but is easier to prove.) Martinez was taken before a magistrate, who set her bond at $100,000.

At the time she was booked into jail, Martinez also had her first encounter with the U. S. Immigration and Naturalization Service. Since she listed a foreign place of birth, INS officials interviewed her and determined that she had illegally entered the country. According to INS spokesman Lynn Ligon, INS officials put a "hold," or notation on Martinez's file. As Ligon explained, a hold means that "when and if they are released for any reason--on parole, after they've served time, or if they bond out--they come into our custody."

Up to this point, there was nothing unusual about Maricela Martinez's arrest. But soon enough, strange things began to happen.

According to law enforcement officials, upon learning of her daughter's plight, Catalina Martinez, Maricela's mother, journeyed from Apaseo, Mexico, to Dallas. The first thing she did was hire her daughter a private attorney, Donna Winfield, to replace her court-appointed lawyer.

What happened next depends upon whom you talk to.

Attorney Randy Adler is being very careful. "I don't know when Ms. Winfield first contacted my client," says Adler, who is one of the few experts in the arcane area of bonding law. "I wasn't privy to that information."

Adler represents Eddie Dees, the owner of Fast Action bonding and the man who wrote the bond that freed Maricela Martinez from the Dallas County jail. "What I do know is that the attorney [Winfield] contacted the bondsman [Dees] and arranged for the bond; she handled the money." Adler confirms that "Fast Eddie," as his client is known about the courthouse, wanted $10,000 to post Martinez's $100,000 bail.

According to a statement that Catalina Martinez gave law enforcement authorities, Winfield in turn quoted a price of $11,500 to bail Martinez's daughter out of jail, perhaps adding the additional $1,500 for her involvement. Winfield could not be reached for comment.

It took the Martinez family several months, but in March 1997, they apparently raised the money. (According to her statement to county officials, Catalina Martinez sold the family farm.) On March 20, 1997, Eddie Dees posted a bond, and on March 21, Maricela Martinez was delivered into the custody of INS officials, who took her to its Denton facility.

But she didn't stay there long.
Sometime during the next few days, Catalina Martinez went to the office of the Dallas County clerk, trying to find out when her daughter might be released. Mrs. Martinez, who spoke only Spanish, had some difficulty making herself understood. At last, an employee named Flor de la Fuente overheard Ms. Martinez and undertook to translate for her.

De la Fuente was appalled by what she heard: Martinez said that she had been told she could buy her daughter's way out of jail and have her deported rather than have her daughter face the pending criminal charges.

De la Fuente went to Julian Bishop, who oversees bond forfeitures in the clerk's office. Bishop went to the sheriff's office; the sheriff's department went to the district attorney.

Together the sheriff and the district attorney's office apparently decided to set up a sting, and on March 27, Maricela Martinez was brought back to the Dallas County jail.

"What came out at [the bond forfeiture hearing] was they had her transferred back, either to have her give them some evidence or to put another individual in her cell to elicit information," says Adler. "But then the INS whisked away their star witness."

On April 14--before law enforcement could find a suitable Spanish-speaking stoolie--Maricela Martinez was taken, as scheduled, to her INS deportation hearing. An immigration judge ordered her deported, and she was put on a bus for Nuevo Laredo, where she was released the following day.

"The DA didn't want her to go," marvels Adler. "The sheriff's department didn't want her to go. She didn't want to go. [Adler is referring to the fact that Martinez did not voluntarily waive an extradition hearing.]

"But the INS said, 'You go.'"
As INS spokesman Ligon told the Observer last January, "Our obligation to the taxpayer is just to get rid of 'em."

But testimony at a three-day hearing held earlier this month indicates that the right hand of the INS clearly wasn't communicating with the left. According to a transcript of the hearing, the INS had assured the sheriff's department that Martinez would not be deported. "I am troubled by the INS's representations to the sheriff...that they would not deport Ms. Martinez, and then their failure to live up to their representations, and then deporting her a couple of days later, as they say, by error or mistake," said Dallas County Magistrate Darrell Clements at a hearing on May 6.

The INS wasn't the only law enforcement bureaucracy to come in for criticism from the magistrate: "I'm [also] troubled by the sheriff's cavalier attitude about the recording and documenting of affidavits that were served on them."

It turns out that on August 11--while Martinez was sitting in the jail awaiting a Spanish-speaking canary for a cellmate, Eddie Dees served an ATGOB (affidavit to go off bond) at the clerk's office.

Thanks to the power of the bonding lobby and a resultant pair of statutes, a bond company in Texas can offer up his client for re-arrest any time it likes. And on Friday, April 11, 1997, Eddie Dees decided that he'd like to give up Maricela Martinez. "Fast Eddie's" reason, as stated in his affidavit, was that Martinez was in federal custody and about to be deported.

As allowed by statute, Dees filed an affidavit with the clerk of the court where Maricela's case was pending. He also filed it with the district clerk's office, where it automatically resulted in a warrant being issued. It is this warrant that, according to the magistrate, the sheriff's office handled "cavalier[ly]."

In other words, the sheriff should have rearrested Martinez on her state criminal charge as she sat in the Dallas County jail awaiting deportation on the INS hold, rather than let her go to her deportation hearing the following Monday morning.

A number of cynical law-enforcement sorts suggest--anonymously--that Dees filed the affidavit merely to bolster his "I-did-everything-I-was-supposed-to" defense to the county's attempt to make him pay up on the bond.

Indeed, if the "glitch" that allowed Martinez to be freed is created in part by conflicting state and federal priorities, it also depends on the ability of bonding companies to get out of paying the bonds they write on aliens who are then deported.

Normally, when someone bonds out of jail and then fails to appear at trial, the bondsman must pay the full face amount of the bond. But for years, case law actually encouraged bondsmen to write bonds on illegal aliens knowing they would be deported, since the deportation was an absolute defense to forfeiture.

In other words, a bondsman could simply rake in money from illegal aliens with an INS "hold," knowing they'd never have to make good on the bonds, even though their deported customers never showed up for their state trial.

But a Dallas County magistrate is trying to close that loophole.
On May 6, after three days of testimony reliving this tragedy of errors, Magistrate Clements issued a Solomonic ruling. Because Dees had served his ATGOB on the sheriff in time for Martinez to have been rearrested, Clements ruled that Dees will not have to make good on his $100,000 bond. But he issued a stern warning to Dallas County bondsmen:

"Now let me say this about the INS issue in the future...I feel that deportation from the United States, whether voluntary or involuntary, will not be a basis for relief from liability in and of itself. Whether the INS gives a notice [that the alien can come back in the country to defend their case]...is to me now irrelevant...I do not think it has any bearing on exonerating or relieving sureties or principals from the bonds."

The magistrate also ruled that Dees must surrender 75 percent of the money Martinez's mother paid him, allowing him to retain only $2,500 to cover his attorney's fees for the hearing. And Clements had a few choice words to say about the practice of writing bonds on illegal aliens knowing that they would be deported.

"I don't think the law contemplates the kind of result that would occur if liability [on the bond] did not follow...as a result of the U.S. Immigration Service doing its job and protecting the borders of the United States. As we talked about, there would be an obvious situation where you'd have free money with no liability. I do not believe that the law contemplates or allows that, if you will. I think that it would be an unacceptable injustice and another instance of a minority community being preyed upon by unscrupulous bonds practice."

Meanwhile, the sheriff and the district attorney's office are desperately pulling strings to get Maricela sent back to face trial.

But extraditing Mexican citizens to face U.S. charges is a tricky business.In January, U.S. authorities managed to get her arrested in Mexico. But she bonded out of jail, and embassy officials indicated that felony injury to a child was not the sort of "heinous" crime necessary to skirt Mexican law.

In response, the district attorney re-indicted Martinez for murder. New warrants were issued, and in April, Martinez was again taken into custody, where she now awaits the outcome of diplomatic efforts to return her to Dallas.

Meanwhile, the sheriff's department, the district attorney's office, the INS, and Dallas County bondsmen have held a series of talks designed to plug the loophole Maricela took advantage of in the first place.

"There have not been any final resolutions, but we've had three meetings," Ligon says.

The bonding companies claim they are doing their part too.
"Now if there's an INS hold, they won't write a bond," says Adler, who represents a number of Dallas county bondsmen. "Now they [the bondsmen] know it won't be a defense.